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In Re Estate of Trahey

JANUARY 23, 1975.

IN RE ESTATE OF JOSEPHINE TRAHEY, INCOMPETENT. — (MARGARET FITZPATRICK, PETITIONER-APPELLANT,

v.

JAMES C. MCLELLAN, INDIVIDUALLY AND AS CONSERVATOR OF THE ESTATE OF JOSEPHINE TRAHEY, INCOMPETENT, ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE FIEDLER, Judge, presiding.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:

This action was brought by Margaret Fitzpatrick to recover funds which had been held in a joint account in her name and that of the deceased, Josephine Trahey. Her petition was denied and she has appealed.

On July 7, 1960, Josephine Trahey opened a joint account with the right of survivorship at the Drover's Trust and Savings Bank with her brother John Conway and her nephew James McLellan. The account continued in their names until December 1970 and grew from the initial deposit of $5,906.99 to $32,519.03. In the intervening years Mrs. Trahey, a widow, lived with her younger brother, John. Her health gradually deteriorated, and cataracts developed in her eyes. In July 1970 an operation was performed on one eye. It was only partially successful, and her vision remained impaired.

On December 7, 1970, when she was in her 89th year of life, she accompanied Margaret Fitzpatrick, who was married to a nephew of Mrs. Trahey's deceased husband, to the Drover's bank and transferred the funds from the Trahey-Conway-McLellan account to a new joint account in her name and that of Mrs. Fitzpatrick. Mrs. Fitzpatrick took possession of the passbook and $150 was withdrawn from the account that day.

In January 1971 Mrs. Trahey broke her hip and was hospitalized. She died on June 6. While she was in the hospital, her brother petitioned the probate court to appoint a conservator for her and her estate and nominated James McLellan. The petition was supported by a doctor's affidavit which stated that she was confused, disoriented and incapable of managing her affairs. She was adjudicated an incompetent on February 24, and McLellan was appointed conservator. On the same day, a citation was directed to Mrs. Fitzpatrick for information about and discovery of personal property belonging to Mrs. Trahey's estate. She was commanded to appear before the judge of the probate court on March 18 under threat of being punished for contempt. A few days after the citation was served, Mrs. Fitzpatrick and her husband called upon John Conway and turned the passbook over to him.

On March 4, McLellan filed a petition which alleged that Mrs. Trahey was incompetent when her funds were transferred from the first joint account to the second, and that she was induced by Mrs. Fitzpatrick to make the change. The petition stated that Mrs. Fitzpatrick had given the passbook to Conway; it requested that the balance in the second account be redeposited in the names of Mrs. Trahey, John Conway and James McLellan. The petition was granted and the funds were redeposited.

On March 18, 1971, the return date of the citation, the conservator's attorney and the Fitzpatricks appeared in court, but at different times. Their versions of what took place were testified to at the hearing on the plaintiff's petition. The attorney said that when the case was called he asked that the citation be dismissed because its purpose had been accomplished, and that it was dismissed. Mrs. Fitzpatrick testified that when her name was called she approached the bench and the judge read the citation. She informed him that she had brought the passbook to Conway, and the judge concluded the matter by saying that was probably why the other side did not show up.

There were no further developments in the case until 11 months later when Mrs. Fitzpatrick was granted leave to enter her appearance. Four weeks after this — on March 13, 1972 — she filed a petition which asserted that the order of March 4, 1971, improperly directed transfer of the funds from her account with Mrs. Trahey and she asked that the order be vacated. The petition alleged that the order was entered without prior notice to her; that she was frightened by the citation summons; that she was confused and without benefit of counsel when she surrendered the passbook; that she did not intend to relinquish her interest in the account, and that she had expected that the dispute between her and the conservator would be resolved on the return date of the citation. She took exception to the conservator's final account and asked for a hearing as provided for by the Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 187a) to determine her right to the money on deposit in the joint bank account on the day the order was entered.

The conservator's motion to dismiss the petition was denied, and a hearing was held. At its conclusion the trial court found that Mrs. Trahey was incompetent at the time she opened the account with Mrs. Fitzpatrick. Mrs. Fitzpatrick acknowledges that the pivotal issue in her appeal is the court's finding of incompetency, but she nevertheless argues that the court erred in not first passing on the validity of the order of March 4, 1971. She contends that this order (a) divested her of her property without a hearing and thus deprived her of due process of law, and (b) that there was no evidence that she knowingly waived her claim to the joint tenancy account.

The two contentions are intertwined. The argument of invalidity is based upon the conceded fact that no notice of the March 4 petition or hearing was served upon her. The respondents reply that notice was not necessary because she had relinquished all interest in the account before the March 4, 1971, hearing.

Upon being served with the citation, Mrs. Fitzpatrick called the attorney whose name appeared on the citation. He testified that she asked him what the citation was all about and whether she should retain a lawyer. He told her she should. A day later he returned a telephone call from her husband who said his wife claimed no interest in the account and asked to whom the passbook should be given. The Fitzpatricks disputed this testimony. Mrs. Fitzpatrick said she did not discuss the citation with the attorney. Mr. Fitzpatrick testified that the attorney instructed him to turn over the passbook.

John Conway testified that when the Fitzpatricks surrendered the passbook Mr. Fitzpatrick said, "We didn't want any part of this anyhow, we have no interest in it." Mrs. Fitzpatrick testified, "I gave him back his bank book," but she added that nothing was said concerning her interest in the account.

• 1, 2 The principle of "waiver" will be recognized whenever a party intentionally relinquishes a known right or acts in such a manner to warrant an inference of such relinquishment. (National Bank v. Newberg (1972), 7 Ill. App.3d 859, 289 N.E.2d 197; A-1 Cleaners & Dyers v. American Mutual Liability Insurance Co. (1940), 307 Ill. App. 64, 30 N.E.2d 87.) From the above testimony, and the additional facts that the passbook was quickly surrendered in the face of a scheduled court proceeding and that Mrs. Fitzpatrick neither consulted nor engaged a lawyer to defend her right, if she thought she had one, in a $32,500 account, the trial court could have concluded that she voluntarily waived her interest in the account and that she had not demonstrated why a subsequent hearing, held without notice to her, should be declared void.

But apart from this, she is in no position to protest. She made no motion to vacate the order of March 4 and did not appeal it. It was a final order. It removed Mrs. Trahey's money from her account with Mrs. Fitzpatrick and redeposited it in her account with Conway and McLellan. Mrs. Fitzpatrick attempts to circumvent her failure to appeal by asserting that her petition of March 13, 1972, filed 1 year after the order of which she complains, was actually a petition within the scope of section 72 ...


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